Whose water is it?: Debate heats up over public use of non-meandered lakes

More and more eastern South Dakota grassland is being covered with water due to high precipitation amounts in recent years. Landowners want to maintain control of the water on their private property but are facing opposition from the state. Photo by Esther "Tiss" Treib

It is a common misconception that a landowner has complete control of his or her land including the ability to deny access if desired. This most recently has been demonstrated repeatedly to the chagrin of landowners in the northeastern part of South Dakota. Because of increased precipitation in that part of the state over the past two decades, many previously non-existent bodies of water or small bodies of water that have grown larger are now being used by members of the public for recreational activities like boating, fishing, ice fishing, trapping furs, hunting water fowl, etc. “I have cattle that have to swim the slough to get to grass on the other side. Boats would chase my cows while they were in the water,” relates Austin Schiley from Webster, S.D.

The slough that Schiley is talking about is located on his privately-owned land, “Schiley Slough” to be exact. This is deeded land on which Mr. Schiley pays property taxes. However, he was not able to keep what he considers trespassers from using this slough as a recreational area. Other landowners were dealing with the same frustrations. These individuals owned land under Long Lake and Parks Slough. Schiley and the other landowners sought help from the authorities, both the Day County authorities and the South Dakota Game and Fish authorities, to keep people from using these three bodies of water for recreational purposes. The authorities, however, ascertained that the water bodies were owned by the public as meandered waters, regardless of whether or not they were on private land. It was then that Mr. Schiley and the other land owners filed a lawsuit against the South Dakota Game, Fish and Parks Department seeking that their rights as property owners be protected.

Meandered waters are water bodies that were plotted as lakes when the federal government surveyed the land according to S.D. Supreme Court case Parks v. Cooper and the language of SB-169. Meandered waters do not include streams. A meander line is a series of courses and distances to delineate the area of a body of water. Non-meandered lakes are simply any bodies of water that were not plotted as meandered by the federal government. Non-meandered does also not include man-made bodies of water on deeded ground. In South Dakota, these federal surveys took place even before statehood. S.D. Game, Fish and Parks argued that the public had the right to use the bodies of water in question as these water bodies had grown large enough that they could be accessed from public property (roads, section lines) and also that in some cases they had actually joined (through their increased growth) other public bodies of water that were plotted as meandered water.

The lawsuit was argued in front of the circuit court and that court found in favor of the landowners. The circuit court declared that since the water was covering private property, both the water and the land could be used at the discretion of the landowner. The state disagreed and case #22601 was argued before the South Dakota Supreme Court from March 25, 2003, through Feb. 25, 2004. The S.D. Supreme Court in this 2004 case (Parks v. Cooper) eventually granted an injunction on these three bodies of water and gave the landowners discretion on whether or not to allow public use. The court also ruled that it was up to the legislature to decide how water resources can be used by the public. The legislature has attempted to designate the use of meandered lakes (and non-meandered lakes with public access) twice in the past; however, up to this point the legislature has been unsuccessful.

The amount of acres of private property (acres that are currently being taxed as agriculture land) is substantial. Schiley reports that “In 1993 I had 15 acres covered with water and the rest of my property was grassland. Now I have 600 acres covered with water, a big portion of that is farmland.” Mr. Schiley has not only lost the use of his land, grass for his cows, farmland that created income, but also, even though he has an injunction to keep the public off this water, he is still forced to call the authorities to enforce the injunction. The 600 acres are only the acres affected by Schiley Slough. The total affected acres in the state are even more shocking.

Mr. Jeff Volk, the secretary of the South Dakota Game, Fish and Parks, testified as a proponent of proposed legislation SD Senate Bill 169. The bipartisan bill sponsored by 51 legislators is “an act to provide for access to and use of public waters on public and private property and to protect private property rights for the citizens of South Dakota.” (search for the bill at http://legis.sd.gov). Mr. Volk presented a pie chart to a senate hearing committee on Feb. 10, 2014. This chart shows that there are 267 lakes in South Dakota that are plotted as meandered water and they cover 246,000 acres. In addition, there are 1,337 lakes classified as nonmeandered lakes larger than 40 acres covering a astounding 242,000 acres that have public access. Under current law, the public has access to water resources so long as the water adjoins public property – including roads and section lines, regardless of whether meandered or nonmeandered.

Proponents and opponents both testified on this bill Feb. 10, in front of the Senate State Affairs Committee. The committee eventually made the motion DO PASS on SB-169 with a vote of 6-3. This senate bill will now be presented to the floor of the senate for a vote. South Dakotans may certainly exercise their rights and contact their senators to share thoughts and opinions on this issue.